FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
E. Estrada, with whom Estrada Law Office was on brief, for
H. Yousef, Trial Attorney, Office of Immigration Litigation,
Civil Division, with whom Anthony P. Nicastro, Assistant
Director, Office of Immigration Litigation, and Benjamin C.
Mizer, Principal Deputy, Assistant Attorney General, Civil
Division, were on brief, for respondent.
Howard, Chief Judge, Thompson and Kayatta, Circuit Judges.
HOWARD, CHIEF JUDGE.
Irma Aguilar-Escoto, a native and citizen of Honduras, asks
us to vacate a Board of Immigration Appeals ("BIA"
or "Board") order rejecting her claim for
withholding of removal. Aguilar's application for relief
was predicated upon alleged domestic violence by her
ex-husband. Because the BIA failed to consider potentially
significant documentary evidence submitted in support of
Aguilar's claim, we vacate the agency's order.
first entered the United States in August 2005, but she was
apprehended and removed to Honduras. About four years later,
Aguilar returned to the United States. She was again
apprehended, and the Department of Homeland Security filed a
notice to reinstate her prior removal order. The case was
subsequently referred to Immigration Court.
then filed the instant application for withholding of
removal. In order to succeed on a withholding claim, an
applicant must establish that her "life or freedom would
be threatened" in her home country because of her
"race, religion, nationality, membership in a particular
social group, or political opinion." 8 U.S.C. §
1231(b)(3)(A). In light of her reinstated removal order,
Aguilar was not eligible to apply for asylum, a separate form
of relief for aliens harboring a "well-founded fear of
persecution on account of" a protected ground. 8 U.S.C.
§ 1101(a)(42)(A); see also Garcia v. Sessions,
856 F.3d 27, 33 (1st Cir. 2017).
March 2013, an immigration judge ("IJ") conducted a
merits hearing. At the hearing, Aguilar testified to
suffering relentless physical, emotional, and sexual abuse by
Victor Gonzalez, whom she married in 1997 and later divorced.
The IJ, however, citing various perceived inconsistencies,
found that Aguilar's testimony was "not
credible" and therefore discounted it.
rendering this adverse credibility finding, the IJ went on to
separately address the other evidence that Aguilar had
submitted "[a]side from her discredited testimony."
Aguilar had provided "police reports, a family court
order, a medical record, and two declarations"
evidencing her abusive relationship with Gonzalez. According
to the IJ, this documentary evidence "suggest[ed] that
between 2004 and 2008, [Gonzalez] struck [Aguilar] once or
twice, threatened [Aguilar] and her family, and publicly
ridiculed and shamed [Aguilar]. . . . As a result, [Aguilar]
sought court-ordered psychological treatment and was
prescribed antidepressants and sedatives . . . ." The IJ
did not question the credibility of Aguilar's documentary
evidence but instead concluded that the abuse reflected
therein was not sufficiently serious and persistent to
appealed to the BIA, challenging the IJ's adverse
credibility finding. She also argued that she had presented
sufficient "credible evidence" of her abuse, citing
the documentary materials submitted to the IJ in addition to
her testimony. The BIA dismissed her appeal, holding that the
IJ "did not commit clear error in her adverse
credibility determination." The Board did not so much as
mention the IJ's separate treatment of the documentary
evidence. Rather, based solely on its credibility ruling, the
BIA concluded that Aguilar "failed to meet her burden of
proof for asylum." On appeal, the government concedes
that the BIA's reference to asylum was erroneous. Aguilar
did not, and indeed could not, pursue an asylum claim. The
Board went on to conclude that Aguilar was not eligible for
withholding of removal because withholding "has a higher
burden of proof" than asylum.
now petitions this court to review the BIA decision rejecting
her withholding of removal claim. Again, she challenges the
agency's adverse credibility finding but also contends
that, notwithstanding her credibility, the agency
"failed to consider [her] well-documented claim of past
persecution." The government curiously responds to the
first point but declines to argue the second, devoting the
entirety of its brief to the credibility of Aguilar's
testimony. We now hold that, irrespective of the